What Killed Filibuster Reform?

Some thoughts. (And don’t kid yourself — it was entirely killed. Making it quicker for district-but-not-circuit court judges to be confirmed after cloture? Please. That’s “filibuster reform” in the same sense that a lollipop from the bowl on the desk of a doctor’s receptionist is a “cure for cancer.”)

Sadly, the best chance for putting the filibuster on the path to destruction probably remains Republicans during a period of unified government putting their short-term policy interests ahead of the long-term interests of their movement. Their more ideologically unified conference makes this a little more likely.

Post navigation

Your second paragraph is probably overly pessimistic. Given that there’s a real constituency for it in the Senate Democratic caucus, eventually Democrats are going to neuter the filibuster when the older generation of progressive(ish) Senators either retire and are replaced with new Democrats who aren’t as attached to the rules of the Senate or come to grips with the fact that major rules changes are the only available path to overcoming Republican obstructionism.

Yossarian

But the worry I have there is that the “new Democrats” who are currently frustrated by the filibuster will simply become older and more used to the power they’d be giving up if they did reform the filibuster. Sure, now they’re reformers — but I fear that in 20 years or so, they’ll be “institutional men” too.

It’s possible, but I don’t think the institutional men here (Leahy, Levin, etc) are so much corrupted by power as they are slow to recognize that the culture of the Senate has changed around them. They spent a lot of years in the chamber when the filibuster wasn’t really a big deal, and so they’re of the view that the problem is that their Republican colleagues are uncongenial extremists doing crazy things, as opposed to a caucus interested in using whatever procedural means are available to advancing their agenda. The new class of Senators will never live in that culture, so they’re likely to keep pushing the abolition/serious curtailing of the filibuster as the only means towards getting any serious shit done.

I feel like it’s a difference between senators who care about being senators (being part of a prestigious institution; having it be a practically lifelong career) and senators who ran with the idea of doing things (creating new laws and policies that kick in quickly). Especially for governors and activists who become senators, results-oriented decision-making people, it has to be agonizing to see so many people do so very little and so slowly.

Joshua

Maybe 20 years in the game will also make them acutely aware of what the other guys are doing.

Harry Reid and those other old guys is from a different era, not just the “Ronnie & Tip” thing but the “Democrats are getting routed” 70s, 80s, and early 00s. He’s like an abused puppy.

howard

joshua, the very point i wanted to make: a lot of the older democratic senators really don’t ever believe that they represent majority opinion (or, more precisely, they don’t believe they represent the majority of likely voter opinion).

UserGoogol

I’m not sure the incentives even play in that direction. If you’re a high ranking Senator, a large part of the formal power you yield is the power to pass legislation. Being the chairman of a Senate committee or whatever gives you a lot of power over creating legislation, but if the game is holding up legislation then you’re just one out of forty-something Senators. So being able to actually pass legislation is more in their interests than it might be if they were just some freshman backbencher.

tonycpsu

a large part of the formal power you yield

This is a typo, but a very appropriate one given that we’re talking about Senate Democrats.

montag2

Dems are still operating from fear–a fear that the Republicans will use any filibuster changes against them when the Rs once again gain a majority–rather than operating from a position of responsible authority. If they produce and pass legislation seen as benefitting the voters, that would strengthen their electoral chances, especially if such bills are routinely rejected by the House.

Their chances of keeping that majority, however, are much less likely if they are seen as craven and calculating, an outcome much more likely with this failure, among others.

A large majority of the Dems don’t seem to agree with the few who blocked real reform.

Anonymous

This. 7 may be a bit low, but it’s well under a third of the caucus. Dems can do this some time in the next 10 years if Repubs don’t beat them to it. Problem is, of course, that in 10 years we will be well and truly past the point of positive feedback on climate change, with consequences that range from “worst crisis civilization has ever faced” to “worst crisis the planet has ever faced” (with “humanity” and “mammals” somewhere in the middle there).

djw

Yeah, not long ago I would have assumed that Merkley was doomed to be a (more or less) lone voice in the wilderness for his career on this issue. It’s heartening to see that isn’t the case at all. I’m less optimistic about the future of filibuster reform than I was a week ago, but far more optimistic than I was even six months ago.

Jameson Quinn

(I was the above anon)

Yes. Filibuster reform isn’t dead. It is more alive than 6 months ago. It will fight again and win.

And the reason it’s gonna win is that the left is getting its shit together on structural issues. Now if they’d only realize that voting system reform (as in, approval voting and proportional representation) belongs among those issues.

Can’t tell what’s sadder – that he couldn’t get the 51 votes needed or he really thought he had the 51 votes.

In other disappointing news Udall announces that he lost the biggest poker hand ever by an incredible stroke of bad luck. Udall had the pot nailed when he was dealt a hand that only needed the Jack and the King to get that Royal straight flush. What are the odds that he won’t get those cards? What are the odds????

I can see Udall as Obama’s envoy to the Middle East – We’re this close, really close. All we need are Israelis and the Palestinians to agree. Then we’re done. It’s this close. Practically done.

Please wire me your bank account number so I can transfer my Nigerian funds to it.

Glenn

the obvious answer to the question about what would happen if Republicans were able to control all three branches without the filibuster is “what happens in pretty much every other liberal democracy: elected majorities are able to govern.

This is just a bit sanguine, it seems to me, because it seems increasingly likely that the Republicans will be able to achieve an “elected majority” without actually having majority support in the electorate. The House is already gerrymandered towards the GOP by several points; Republicans are now actively working to move the Electoral College in that direction; and the Senate by its very nature is gerrymandered in a way that tends to favor at least rural interests (which, if not necessarily Republican-leaning, at least tend not to be terribly progressive).

I don’t mean by this that the filibuster is necessarily a good thing; I tend to think it’s not. But I do think the Democratic case for maintaining it can’t be waved away quite so easily.

But that only does you so much good if you govern so outrageously that 75% of the country out and out despises you. Do something like up and abolish Medicare and Social Security overnight and you won’t be able to gerrymander yourself into a majority for long.

rm

Sure, but if you succeed in abolishing the New Deal your work is done. You no longer need to be in office; a grateful plutocracy will take care of you.

rea

It’s not as if the Democrats use the filibuster when they are in the minority . . .

mpowell

Democrats would not fillibuster a Republican majority entitlement reform bill. Hope that clarifies things for you.

sibusisodan

Filibuster reform probably won’t happen until a major political battle—such as the serial filibustering of Supreme Court nominees—makes the policy costs not worth the institutional advantages to the majority party.

Well put. I’d hadn’t thought of it like that – that asking for filibuster reform when the House is Republican-controlled essentially has no concrete payoffs.

Incontinentia Buttocks

Nonsense. Confirmation battles are an entirely concrete payoff that have nothing whatsoever to do with the House.

Incontinentia Buttocks

The evilness of the Lesser Evil Party consists, in part, of the fact that it insists on assisting the Greater Evil Party in many ways.

The LEP is, on the face of it, much better on labor issues than the GEP. Yet, by upholding the filibuster, the LEP essentially makes it impossible even to have a functional NLRB.

Sadly, the best chance for putting the filibuster on the path to destruction probably remains Republicans during a period of unified government putting their short-term policy interests ahead of the long-term interests of their movement.

I just don’t see it. The GOP has proven in the past they can use Calvinball to pass their top priority (tax cuts for the rich) without making explicit rule changes. They can do the same in the future with creative use of reconciliation and overriding the parliamentarian on any points of order Democrats raise.

Off topic, on the attempt to game the electoral college to benefit Republicans (I guess on some level this is all connected), I wonder if an Equal Protection Clause case can be imagined. In Bush v. Gore (ha ha), equal protection was applied and the fact the state courts were allegedly just applying state law over presidential elections wasn’t enough. The EPC trumps the Constitution proper and if the system is used in such an irrational way to violate “one person, one vote” principles, it seems to be violated here too.

There’s no “one person one vote” principle in the Constitution, though.

Jameson Quinn

There wasn’t a right to privacy, either, until Roe. Not gonna happen under the current court, I know, but not impossible if one of the dinosaurs has to leave.

Another theory, besides EPC, is freedom of assembly. Partisan gerrymandering (as in, gerrymandering in which voter party ID, as opposed to proxy variables imperfectly correlated with that, is a clear factor), in my opinion, violates it. Yes, even nonpartisan districting tends to have an R bias, but much less so than today’s GIS-powered micro-targeted gerrymanders.

Don’t phrase it that way, if you wish. There is an Equal Protection Clause & if you are going to count votes (voting being a fundamental right) in a way that will in practice unreasonably benefit the minority, at some point it becomes illegitimate under that principle.

The Art. II should be read along with later amendments and upon reflection, the ability to use the electoral system can be reasonably argued to violate them at some point. If I need to do the battle with the ghost of Justice Frankfurter, so be it.

Manju

Its gotta be those left-leaning moderates again. I tell ya, if Mary Landrieu’s a vegetarian, I’m never touching broccoli again.